Obama Offers Waivers From Key Provisions of NCLB

By Michele McNeil & Alyson Klein — September 27, 2011 9 min read
President Barack Obama stands with educators and students in the East Room of the White House on Sept. 23 as he speaks about details to give states waivers from requirements of the No Child Left Behind Act.
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The Obama administration will waive cornerstone requirements of the No Child Left Behind Act, including the 2014 deadline for all students to be proficient in math and reading/language arts, and will give states the freedom to set their own student-achievement goals and design their own interventions for failing schools.

In exchange for that flexibility, the administration will require states to adopt standards for college and career readiness, focus improvement efforts on 15 percent of the most troubled schools, and create guidelines for teacher evaluations based in part on student performance.

With reauthorization of the Elementary and Secondary Education Act stalled in Congress, President Barack Obama unveiled details of the long-awaited NCLB waiver plan at a White House event on Sept. 23. No Child Left Behind is the current version of the ESEA, which dates to 1965.

“If we are serious about building an economy that lasts, ... we have to get serious about education,” said the president, flanked by a group that included governors and state and local education officials. “Given that Congress can’t act, I am acting.”

Tennessee Gov. Bill Haslam, a Republican, who was among those introducing the president, said: “This is one of the issues we can work together on. Education decisions are best made at the local level.”

U.S. Secretary of Education Arne Duncan has declared that the nearly 10-year-old NCLB law is “broken” and warned that if nothing changed, 80 percent of schools this year would not make adequate yearly progress, or AYP, the key yardstick under the law, and could be labeled as failing.

Although many states did far better than that 80 percent estimate, more and more schools each year are failing to make AYP, as the 2014 deadline for 100 percent proficiency approaches. Each year, proficiency targets get higher, making it harder for schools to clear that achievement bar, especially when it comes to subgroups, such as English-language learners and students with disabilities.

“The purpose [of these waivers] is not to give a ... reprieve from accountability, but rather to unleash innovation,” a senior administration official said in a Sept. 22 media briefing. “We remain absolutely committed to accountability. We’re not interested in giving flexibility for business as usual.”

The waiver rollout was welcomed by many state education chiefs, though they will now face the pressure of using the new flexibility to deliver improved student achievement.

“I don’t think there’s pressure. I think there’s a responsibility. It’s a responsibility to ensure we do reform in our states in a meaningful way,” said Hanna Skandera, New Mexico’s education secretary-designate, speaking in an interview the day before the White House event. Her state, which just adopted a new grading system for schools, will use that accountability system as the bedrock of its waiver application.

As a show of support for the waiver plan, Ms. Skandera was among those attending the White House rollout, a group that included, among others, Rhode Island Gov. Lincoln D. Chafee, an Independent, Baltimore city schools Chief Executive Officer Andrés Alonso, and nearly two dozen state schools chiefs.

But on Capitol Hill, Republican reaction was swift and critical.

Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, has called into question the secretary’s authority to issue waivers tied to conditions.

“While I appreciate some of the policies outlined in the secretary’s waivers plan, I simply cannot support a process that grants the secretary of education sweeping authority to handpick winners and losers,” Rep. Kline said. “This sets a dangerous precedent, and every single American should be extremely wary.”

He called the plan “a political move that could have a damaging impact on congressional efforts” to renew the law.

Securing a Waiver

States that are most ready to apply can file by mid-November, and a second round of waiver requests will be accepted in January. Waivers will be issued early next year, and will be in effect through the 2013-14 school year, with an option for a one-year extension. That timing means states could reset the bar for what is considered acceptable growth on test scores for the current school year.

Schools and districts may not feel the effects of the regulatory relief, however, until the 2012-13 school year, when provisions of the law such as the need to set aside funds for free tutoring and school choice will be waived.

If a state doesn’t get a waiver, the U.S. Department of Education will enforce the law until Congress reauthorizes the ESEA, administration officials said.

To be eligible for a waiver, states must already have adopted college- and career-ready standards. Already, 44 states plus the District of Columbia are part of the Common Core State Standards Initiative, which includes a college- and career-ready thrust. (Minnesota has adopted the common core in English/language arts only.) States that have not adopted the common core are still eligible if they can get their university systems to agree that their standards are college- and career-ready. States must then also tie their state tests to those standards.

States still will be required to test students annually in reading and in math in grades 3-8 and once in high school, a central provision of the No Child Left Behind law.

The waiver plan calls for states to set “basic guidelines” by the end of this school year for teacher and principal evaluation and support systems, based in part on “student progress over time.” Those new systems, which must be piloted in districts during the 2013-14 school year, will provide “clear feedback” to teachers on how to improve, and have to be used to make personnel decisions. It’s unclear what those personnel decisions would entail.

But the waiver plan backs away from a specific deadline for bringing all students to proficiency. Instead, states would still disaggregate data and set performance targets for every school and every key student subgroup, and then set “ambitious but achievable goals.” They could adopt goals, for instance, to cut the achievement gap between minority and white students in half in six years.

The waiver package will require states to implement aggressive interventions in the lowest 5 percent of schools. That requirement won’t be a big change for states, which are all already receiving money under the School Improvement Grant program, in which the Education Department has prescribed four models for intervention.

States must also identify another 10 percent of schools that struggle with particularly low graduation rates, low performance for specific subgroups of students (such as those with disabilities), or high achievement gaps.

Loosening the Reins

Currently, as schools fail to make AYP, they face an escalating set of sanctions, which range from being required to provide tutoring and school choice to undergoing restructuring. The waiver package will free up about $1 billion in Title I money that schools are now required to use on tutoring and choice and allow them to use the funds elsewhere.

But under the waiver plan, a sizable portion of schools that may not be performing well—but are still above the bottom 15 percent—could be left to flounder, some education advocates fear.

“It is a reasonable federal framework focused on the right thing. That said, it gives the states a lot of running room that they’ve been clamoring for. The ball’s in their court,” said Amy Wilkins, the vice president for government affairs and communications of the Education Trust, a Washington organization that advocates on behalf of at-risk students. “Will the states step up and come up with thoughtful supports and interventions for schools that are not at the very bottom?”

In addressing such questions, the role of peer reviewers under the plan could prove important. Though the Education Department and Mr. Duncan will be the ultimate decisionmakers on which states get waivers, the federal officials will rely on outside judges to vet the proposals.

Plan Tracks ‘Blueprint’

Many of the provisions in the waiver package are embedded in the Obama administration’s March 2010 blueprint for revamping the ESEA, such as a shift toward college- and career-ready standards and a more nuanced accountability system.

In January of this year, President Obama called on Congress in his State of the Union address to fix the NCLB law. But nearly eight months later, lawmakers still have yet to introduce comprehensive legislation. The House education committee has approved three bills that would make changes to the ESEA, but none deals with the accountability and teacher-quality issues at the heart of the current law.

Earlier this month, U.S. Sen. Lamar Alexander, R-Tenn., a former secretary of education who once called Secretary Duncan the president’s best Cabinet pick, sponsored a bill intended to clarify the secretary’s waiver authority. The bill—which has not yet been considered by the full Senate—would prohibit the department from issuing the sort of conditional waivers spelled out in the plan.

And the day the waiver details were announced, Sen. Alexander gave a speech on the Senate floor urging the department not to grant conditional waivers—ones tied to meeting the administration’s school reform prescriptions—but instead to allow states to submit their best plans. The department would then decide if those plans would move the needle on student achievement.

Mr. Alexander said the department “has states over a barrel” and should refrain from acting “like a national school board. ... We shouldn’t create a situation where every governor has to come to Washington to get a waiver from standards that don’t work anymore. That’s our job.”

But Rep. George Miller of California, the ranking Democrat on the House education committee, said that while he would have preferred a comprehensive ESEA reauthorization to waivers, he supports the administration’s decision to go ahead with the plan.

The NCLB law has become outdated, said Mr. Miller, one of the key authors of the bipartisan measure, which was championed by President George W. Bush.

“It’s become clear that many states and districts are heading off in different directions,” Mr. Miller said. “They are essentially outrunning the ability of NCLB to provide them a path forward. ... Waivers [are a way] to make sure that we continue the tenets of NCLB to provide high standards, provide accountability, make sure we meet the civil rights demands of the law.”

Welcome Flexibility

Florida has a long-established state testing system that, like the one enacted in New Mexico, gives schools grades of A to F. The state intends to apply for a waiver, and officials there are encouraged by the process, a spokesman for the Florida education department said.

“The benefits of a waiver would be very evident for Florida, especially in giving us the ability to better align state and federal accountability requirements so parents and the public can more easily understand how our schools are doing,” spokesman Tom Butler said in a statement.

The waiver plan also got good early reviews from Dennis Van Roekel, the president of the National Education Association, which had pursued a legal challenge to the NCLB law.

Though the 3.2 million-member union was still awaiting details, “we’re very hopeful” about the general direction, he said.

“I’m excited about the elimination of the old [AYP],” Mr. Van Roekel said, “and the arbitrary deadline” for bringing all students to proficiency by the end of 2013-14 school year.

Assistant Editor Sean Cavanagh contributed to this article.
A version of this article appeared in the September 28, 2011 edition of Education Week as Obama Outlines NCLB Flexibility


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